In Holly v. Scott, the Fourth Circuit in an opinion by Judge Wilkinson, joined by District Judge Harwell, with Judge Motz concurring in the judgment, held that there can be no Bivens claim against the employees of a federal prison operated by a private company.
The opinion explains that the plaintiff "is a federal inmate at Rivers Correctional Institution, a privately run facility in North Carolina operated by the GEO Group, Inc. under contract with the federal Bureau of Prisons."
Judge Wilkinson notes the reluctance of the Supreme Court to expand the judge-made concept of a Bivens claim: "The Court’s repeated reluctance to extend Bivens is not without good reason. A Bivens cause of action is implied without any express congressional authority whatsoever. This is hardly the preferred course. The Supreme Court has 'recently and repeatedly said that a
decision to create a private right of action is one better left to legislative judgment in the great majority of cases.'" He adds: "As the last twenty-five years of Bivens jurisprudence demonstrate, so well-suited is Congress to determine the policies pertaining to a remedial scheme that neither the absence nor the incompleteness of such a scheme represents an invitation for a court to step in to correct what it may perceive as an injustice toward an individual litigant."
Judge Wilkinson found two factors that justified denial of a Bivens claim against the employees of the private prison: "First, defendants are private individuals, not government actors. Second, Holly has an adequate remedy against defendants for his alleged injuries under state law."
Judge Motz in her concurring opinion maintains that private contractors providing medical care in state prisons have been held to be state actors for many years, but nevertheless agrees that there is no Bivens claim because the plaintiff has a state tort law remedy against the defendants.
Mike at Crime & Federalism thinks the Supreme Court's Malesko decision contains plenty of cues which Judge Wilkinson chose to ignore, and links to these post from All Deliberate Speed and Decision of the Day.